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Employees must have disability themselves for duty to make reasonable adjustments to apply

In a definitive judgment, the Court of Appeal has determined that the employer’s duty to make reasonable adjustments is limited to employees with…

In a clear and definitive Judgment, the Court of Appeal has determined that the employer’s duty to make reasonable adjustments is limited to employees with disabilities. Importantly, the obligation does not extend to employees who care for those with disabilities. This reassuring decision in Hainsworth v MOD limits employer’s legal obligations and risk when dealing with requests from carers of those with disabilities.

The detail

Ms Hainsworth was stationed in Germany by her employer, the MOD. She had a daughter with Down’s syndrome, which meant that the MOD could not provide the required schooling in Germany (which they would have done for a non-disabled child). Ms Hainsworth argued that it was a reasonable adjustment to be transferred to the UK where her daughter’s schooling needs could be met. This argument could only legally succeed if the employer’s duty to make reasonable adjustments extends to situations where the adjustment related to a person with a disability who was not the employee.  The Court of Appeal has held that it does not. For the purposes of a reasonable adjustment argument/claim the person with the disability must be the employee.

This means that so-called “associative discrimination” applies to some types of disability discrimination claim but not others.  The employee subject to verbal abuse because of their child or partner’s disability will have a valid disability harassment claim. An employee can be directly discriminated against because of another’s disability. For example, the mother refused a promotion because they are expected to be less committed because they have a disabled child, would have a valid claim. However, following this Judgment, where an employee makes a request for some change to normal practice because of their caring responsibilities for someone with a disability, the positive duty to make reasonable adjustments does not apply.

What does this mean for me?

You may face many requests for changes to working hours, times or the place of work. From the end of this month the right to request flexible working will extend to all employees, irrespective of the reason for their request. This governs the process to be followed and what you take into account when refusing. Many of you will feel able to grant such requests made by employees to assist them with their arrangements to care for others, where their roles and business need allows. However what this Judgment helpfully removes is the risk of one additional legal obligation which could have applied to you.

A request linked to an employee’s own disability engages the duty to make adjustments where they are reasonable. A request linked to someone else’s disability does not.

Comment

Disability discrimination law can be very complicated when applied to day to day employee issues. In our experience employees can sometimes believe that if they can identifying a disability and something they want to change, that is sufficient to mean that you are obliged to make the adjustment sought. In practice the law is far more complicated than that. What this Judgment helpfully removes is any need to worry about reasonable adjustments when the person with the disability is not the employee themselves.